9.  The applicant left Kabul early in 2008 and, travelling via Iran and Turkey, entered the European Union through Greece, where his fingerprints were taken on 7 December 2008 in Mytilene.
10.  He was detained for a week and, when released, was issued with an order to leave the country. He did not apply for asylum in Greece.
11.  On 10 February 2009, after transiting through France, the applicant arrived in Belgium, where he presented himself to the Aliens Office with no identity documents and applied for asylum.
12.  The examination and comparison of the applicant’s fingerprints generated a Eurodac “hit” report on 10 February 2009 revealing that the applicant had been registered in Greece.
13.  The applicant was placed initially in the Lanaken open reception centre for asylum-seekers.
14.  On 18 March 2009, by virtue of Article 10 § 1 of Council Regulation No. 343/2003/EC (“the Dublin Regulation”; see paragraphs 65-82 below), the Aliens Office submitted a request for the Greek authorities to take charge of the asylum application. When the Greek authorities failed to respond within the two-month period provided for in Article 18 § 1 of the Regulation, the Aliens Office considered this to be a tacit acceptance of the request to take charge of the application, pursuant to paragraph 7 of that provision.
15.  During his interview under the Dublin Regulation on 18 March 2009, the applicant told the Aliens Office that he had fled Afghanistan with the help of a smuggler to whom he had paid 12,000 United States dollars and who had taken his identity papers. He said that he had chosen Belgium after meeting some Belgian NATO soldiers who had seemed very friendly. He also requested that the Belgian authorities examine his fears. He told them that he had a sister in the Netherlands with whom he had lost contact. He also mentioned that he had had hepatitis B and had been treated for eight months.
16.  On 2 April 2009 the UNHCR sent a letter to the Belgian Minister for Migration and Asylum Policy criticising the deficiencies in the asylum procedure and the reception conditions of asylum-seekers in Greece and recommending the suspension of transfers to Greece (see paragraphs 194-95 below). A copy was sent to the Aliens Office.
17.  On 19 May 2009, in application of section 51/5 of the Act of 15 December 1980 on the entry, residence, settlement and expulsion of aliens (“the Aliens Act”), the Aliens Office decided not to allow the applicant to stay and issued an order directing him to leave the country. The reasons given for the order were that, according to the Dublin Regulation, Belgium was not responsible for examining the asylum application; Greece was responsible and there was no reason to suspect that the Greek authorities would fail to honour their obligations in asylum matters under Community law and the 1951 Geneva Convention relating to the Status of Refugees. That being so, the applicant had the guarantee that he would be able, as soon as he arrived in Greece, to submit an application for asylum, which would be examined in conformity with the relevant rules and regulations. The Belgian authorities were under no obligation to apply the derogation clause provided for in Article 3 § 2 of the Dublin Regulation. Lastly, the applicant did not have any health problems that might prevent his transfer and had no relatives in Belgium.
18.  On the same day, the applicant was taken into custody with a view to the enforcement of that decision and placed in closed facility 127 bis for illegal aliens, in Steenokkerzeel.
19.  On 26 May 2009 the Belgian Committee for Aid to Refugees, the UNHCR’s operational partner in Belgium, was apprised of the contact details of the lawyer assigned to the applicant.
20.  On 27 May 2009 the Aliens Office scheduled the applicant’s departure for 29 May 2009.
21.  At 10.25 a.m. on the appointed day, in Tongres, the applicant’s initial counsel lodged an appeal by fax with the Aliens Appeals Board to have the order to leave the country set aside, together with a request for a stay of execution under the extremely urgent procedure. The reasons given, based in particular on Article 3 of the Convention, referred to a risk of arbitrary detention in Greece in appalling conditions, including a risk of ill-treatment. The applicant also relied on the deficiencies in the asylum procedure in Greece, the lack of effective access to judicial proceedings and his fear of being sent back to Afghanistan without any examination of his reasons for having fled that country.
22.  The hearing was scheduled for the same day, at 11.30 a.m., at the seat of the Aliens Appeals Board in Brussels. The applicant’s counsel did not attend the hearing and the application for a stay of execution was rejected on the same day, for failure to attend.
23.  The applicant refused to board the aircraft on 29 May 2009 and his renewed detention was ordered under section 27(1) of the Aliens Act.
24.  On 4 June 2009 the Greek authorities sent a standard document confirming that it was their responsibility under Articles 18 § 7 and 10 § 1 of the Dublin Regulation to examine the applicant’s asylum request. The document ended with the following sentence: “Please note that if he so wishes this person may submit an application [for asylum] when he arrives in Greece.”
25.  On 9 June 2009 the applicant’s detention was upheld by order of the chambre du conseil of the Brussels Court of First Instance.
26.  On appeal on 10 June, the Indictments Division of the Brussels Court of Appeal scheduled a hearing for 22 June 2009.
27.  Notified on 11 June 2009 that his departure was scheduled for 15 June, the applicant lodged a second request, through his current lawyer, with the Aliens Appeals Board to set aside the order to leave the territory. He relied on the risks he would face in Afghanistan and those he would face if transferred to Greece because of the unlikelihood of his application for asylum being properly examined and the appalling conditions of detention and reception of asylum-seekers in Greece.
28.  A second transfer was arranged on 15 June 2009, this time under escort.
29.  By two judgments of 3 and 10 September 2009, the Aliens Appeals Board rejected the applications for the order to leave the country to be set aside – the first because the applicant had not filed a request for the proceedings to be continued within the requisite fifteen days of service of the judgment rejecting the request for a stay of execution lodged under the extremely urgent procedure, and the second on the ground that the applicant had not filed a memorial in reply.
30.  No administrative appeal on points of law was lodged with the Conseil d’Etat.
31.  In the meantime, on 11 June 2009, the applicant applied to the Court, through his counsel, to have his transfer to Greece suspended. In addition to the risks he faced in Greece, he claimed that he had fled Afghanistan after escaping a murder attempt by the Taliban in reprisal for his having worked as an interpreter for the international air force troops stationed in Kabul. In support of his assertions, he produced certificates confirming that he had worked as an interpreter.
32.  On 12 June 2009 the Court refused to apply Rule 39 of the Rules of Court but informed the Greek Government that its decision was based on its confidence that Greece would honour its obligations under the Convention and comply with European Union legislation on asylum. The letter sent to the Greek Government read as follows:
“That decision was based on the express understanding that Greece, as a Contracting State, would abide by its obligations under Articles 3, 13 and 34 of the Convention. The Section also expressed its confidence that your Government would comply with their obligations under the following:
 
–  the Dublin Regulation referred to above;
 
–  Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member States for granting and withdrawing refugee status; and
 
–  Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers.
 
I should be grateful therefore if your Government would undertake to inform the Court of the progress of any asylum claim made by the applicant in Greece as well as the place of detention, if he is detained on arrival in Greece.”
33.  On 15 June 2009 the applicant was transferred to Greece. On arriving at Athens International Airport he gave his name as that used in the agreement confirming responsibility for the examination of his asylum request, issued by the Greek authorities on 4 June 2009.
34.  On 19 June 2009 the applicant’s lawyer received a first text message, in respect of which he informed the Court. It stated that upon arrival the applicant had immediately been placed in detention in a building next to the airport, where he was locked up in a small space with twenty other detainees, had access to the toilets only at the discretion of the guards, was not allowed out into the open air, was given very little to eat and had to sleep on a dirty mattress or on the bare floor.
35.  When released on 18 June 2009, he was given an asylum-seeker’s card (a “pink card”; see paragraph 89 below). At the same time, the police issued him with the following notification (translation provided by the Greek Government):
“In Spata, on 18 June 2009 at 12.58 p.m., I, the undersigned police officer ..., notified the Afghan national ..., born on ..., of no registered address, that he must report within two days to the Aliens Directorate of the Attica Police Asylum Department to declare his home address in Greece so that he can be informed of progress with his asylum application.”
36.  The applicant did not report to the Attica police headquarters on Petrou Ralli Avenue in Athens (“the Attica police headquarters”).
37.  Having no means of subsistence, the applicant went to live in a park in central Athens where other Afghan asylum-seekers had assembled.
38.  Having been informed of the situation on 22 June 2009, the Registrar of the Second Section sent a further letter to the Greek Government which read as follows:
“I should be obliged if your Government would inform the Court of the current situation of the applicant, especially concerning his possibilities to make an effective request for asylum. Further, the Court should be informed about the measures your Government intend to take regarding:
(a)  the applicant’s deportation;
(b)  the means to be put at the applicant’s disposal for his subsistence.”
39.  The Greek authorities were given until 29 June 2009 to provide this information, it being specified that: “Should you not reply to our letter within the deadline, the Court will seriously consider applying Rule 39 against Greece.”
40.  On 2 July 2009, having regard to the growing insecurity in Afghanistan, the plausibility of the applicant’s story concerning the risks he had faced and would still face if he were sent back to that country and the lack of any reaction on the part of the Greek authorities, the Court decided to apply Rule 39 and indicate to the Greek Government, in the parties’ interest and that of the smooth conduct of the proceedings, not to deport the applicant pending the outcome of the proceedings before the Court.
41.  On 23 July 2009 the Greek Government informed the Court, in reply to its letter of 22 June 2009, that on arriving at Athens International Airport on 15 June 2009 the applicant had applied for asylum and the asylum procedure had been set in motion. The Government added that the applicant had then failed to go to the Attica police headquarters within the two-day time-limit to fill in the asylum application and give them his home address.
42.  In the meantime, the applicant’s counsel kept the Court informed of his exchanges with the applicant. He confirmed that the applicant had applied for asylum at the airport and had been told to go to the Attica police headquarters to give them his home address for correspondence in the proceedings. The applicant had not gone, however, as he had no address to give them.
43.  On 1 August 2009, as he was attempting to leave Greece, the applicant was arrested at Athens International Airport in possession of a false Bulgarian identity card.
44.  He was placed in detention for seven days in the same building next to the airport where he had been detained previously. In a text message to his counsel, he described his conditions of detention, alleging that he had been beaten by the police officers in charge of the centre, and said that he wanted to get out of Greece at any cost so as not to have to live in such difficult conditions.
45.  On 3 August 2009 he was sentenced by the Athens Criminal Court to two months’ imprisonment, suspended for three years, for attempting to leave the country with false papers.
46.  On 4 August 2009 the Ministry of Public Order (now the Ministry of Civil Protection) adopted an order stipulating that in application of section 76 of Law no. 3386/2005 on the entry, residence and social integration of third-country nationals in Greece, the applicant was the subject of an administrative expulsion procedure. It further stipulated that the applicant could be released as he was not suspected of intending to abscond and was not a threat to public order.
47.  On 18 December 2009 the applicant went to the Attica police headquarters, where his “pink card” was renewed for six months. In a letter on the same day, the police took note in writing that the applicant had informed them that he had nowhere to live, and asked the Ministry of Health and Social Solidarity to help find him a home.
48.  On 20 January 2010 the decision to expel the applicant was automatically revoked by the Greek authorities because the applicant had made an application for asylum prior to his arrest.
49.  In a letter dated 26 January 2010, the Ministry of Health and Social Solidarity informed the State Legal Council that, because of strong demand, the search for accommodation for the applicant had been delayed, but that somewhere had been found; in the absence of an address where he could be contacted, however, it had not been possible to inform the applicant.
50.  On 18 June 2010 the applicant went to the Attica police headquarters, where his “pink card” was renewed for six months.
51.  On 21 June 2010 the applicant received a notice in Greek, which he signed in the presence of an interpreter, inviting him to an interview at the Attica police headquarters on 2 July 2010. The applicant did not attend the interview.
52.  Contacted by his counsel after the hearing before the Court, the applicant informed him that the notice had been handed to him in Greek when his “pink card” had been renewed and that the interpreter had made no mention of any date for an interview.
53.  In a text message to his counsel dated 1 September 2010, the applicant informed him that he had once again attempted to leave Greece for Italy, where he had heard that reception conditions were more decent and he would not have to live on the street. He was stopped by the police in Patras and taken to Salonika, then to the Turkish border for expulsion there. At the last moment, the Greek police decided not to expel him, according to the applicant because of the presence of the Turkish police.
54.  Belgium and Greece have ratified the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”), which defines the circumstances in which a State must grant refugee status to those who request it, as well as the rights and duties of such persons.
55.  In the present case, the central Article is Article 33 § 1 of the Geneva Convention, which reads as follows:
“1.  No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
56.  In its Note on international protection of 13 September 2001 (A/AC.96/951, paragraph 16), the UNHCR, whose task it is to oversee how the States Parties apply the Geneva Convention, stated the following in regard to the principle of “non-refoulement”:
“The obligation of States not to expel, return of refoule refugees to territories where their life of freedom would be threatened is a cardinal protection principle enshrined in the [Geneva] Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognised in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognised as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.”
57.  Fundamental rights, as guaranteed by the Convention, are part of European Union law and are recognised in the following terms:
Article 2
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities ...”
Article 6
“1.  The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
... 3.  Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the member States, shall constitute general principles of the Union’s law.” 2.  The Treaty on the Functioning of the European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009)
58.  The issues of particular relevance to the present judgment are covered by Title V (“Area of freedom, security and justice”) of Part Three of the Treaty on the Functioning of the European Union on Union policies and internal actions” of the Union. In Chapter 1 of this Title, Article 67 stipulates:
“1.  The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the member States. 2.  It ... shall frame a common policy on asylum, immigration and external border control, based on solidarity between member States, which is fair towards third-country nationals. ...”
59.  Chapter 2 of Title V concerns “Policies on border checks, asylum and immigration”. Article 78 § 1 stipulates as follows:
“The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention ... and other relevant treaties.”
60.  Article 78 § 2 provides, inter alia, for the Union’s legislative bodies to adopt a uniform status of asylum and subsidiary protection, as well as criteria and mechanisms for determining which member State is responsible for considering an application for asylum.
61.  The Charter of Fundamental Rights, which has been part of the primary law of the European Union since the entry into force of the Treaty of Lisbon, contains an express provision guaranteeing the right to asylum, as follows:
Article 18 – Right to asylum
“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”
62.  Since the European Council of Tampere in 1999, the European Union has organised the implementation of a common European asylum system.
63.  The first phase (1999-2004) saw the adoption of several legal instruments setting minimum common standards regarding the reception of asylum-seekers, asylum procedures and the conditions to be met in order to be recognised as being in need of international protection, as well as rules for determining which member State is responsible for examining an application for asylum (“the Dublin system”).
64.  The second phase is currently under way. The aim is to further harmonise and improve protection standards with a view to introducing a common European asylum system by 2012. The Commission announced certain proposals in its policy plan on asylum of 17 June 2008 (COM(2008) 360).
(a)  The Dublin Regulation and the Eurodac Regulation
65.  Council Regulation No. 343/2003/EC of 18 February 2003 establishing the criteria and mechanisms for determining the member State responsible for examining an asylum application lodged in one of the member States by a third-country national (“the Dublin Regulation”) applies to the member States of the European Union and to Iceland, Norway and Switzerland.
66.  The Regulation replaces the provisions of the Convention determining the State responsible for examining applications for asylum lodged in one of the member States of the European Communities, signed on 15 June 1990 (“the Dublin Convention”).
67.  An additional Council Regulation, No. 1560/2003/EC of 2 September 2003, lays down rules for the application of the Dublin Regulation.
68.  Recital 1 of the Dublin Regulation states that it is part of a common policy on asylum aimed at progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.
69.  Recital 2 affirms that the Dublin Regulation is based on the presumption that the member States respect the principle of non-refoulement enshrined in the Geneva Convention and are considered as safe countries.
70.  Under the Dublin Regulation, the member States must determine, based on a hierarchy of objective criteria (Articles 5-14), which member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum-seeker’s case is dealt with by a single member State.
71.  Where it is established that an asylum-seeker has irregularly crossed the border into a member State having come from a third country, the member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border-crossing took place.
72.  Where the criteria in the Regulation indicate that another member State is responsible, that State is requested to take charge of the asylum-seeker and examine the application for asylum. The requested State must answer the request within two months from the date of receipt of the request. Failure to reply within two months is understood as constituting an acceptance of the request to take charge of the asylum-seeker (Article 17 and Article 18 §§ 1 and 7).
73.  Where the requested member State accepts that it should take charge of an asylum-seeker, the member State in which the application for asylum was lodged must notify the asylum-seeker of the decision to transfer him or her, stating the reasons. The transfer must be carried out at the latest within six months following acceptance of the request to take charge. Where the transfer does not take place within that time-limit, responsibility for processing the application lies with the member State in which the application for asylum was lodged (Article 19).
74.  By way of derogation from the general rule, each member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Dublin Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases, the State concerned becomes the member State responsible and assumes the obligations associated with that responsibility.
75.  Furthermore, any member State, even where it is not responsible under the criteria set out in the Dublin Regulation, may bring together family members, as well as other dependant relatives, on humanitarian grounds based in particular on family or cultural considerations (Article 15 § 1). This is known as the “humanitarian” clause. In this case, that member State will, at the request of another member State, examine the application for asylum of the person concerned. The persons concerned must consent.
76.  Another Council Regulation, No. 2725/2000/EC of 11 December 2000, provides for the establishment of the Eurodac system for the comparison of fingerprints (“the Eurodac Regulation”). It requires the States to register asylum-seekers’ fingerprints. The data are transmitted to Eurodac’s central unit, run by the European Commission, which stores them in its central database and compares them with the data already stored there.
77.  On 6 June 2007 the European Commission transmitted a report to the European Parliament and the Council on the evaluation of the Dublin system (COM(2007) 299 final). On 3 December 2008 it made public its proposal for a recasting of the Dublin Regulation (COM(2008) 820 final/2). The purpose of the reform is to improve the efficiency of the system and ensure that all the needs of persons seeking international protection are covered by the procedure for determining responsibility.
78.  The proposal aims to set in place a mechanism for suspending transfers under the Dublin system, so that, on the one hand, member States whose asylum systems are already under particularly heavy pressure are not placed under even more pressure by such transfers and, on the other hand, so that asylum-seekers are not transferred to member States which cannot offer them a sufficient level of protection, particularly in terms of reception conditions and access to the asylum procedure (Article 31 of the proposal). The State concerned must apply to the European Commission for a decision. The transfers may be suspended for up to six months. The Commission may extend the suspension for a further six months at its own initiative or at the request of the State concerned.
79.  The proposal, examined under the codecision procedure, was adopted by the European Parliament at first reading on 7 May 2009 and submitted to the Commission and the Council.
80.  At the Informal Justice and Home Affairs Council meeting in Brussels on 15 and 16 July 2010, the Belgian Presidency of the Council of the European Union placed on the agenda an exchange of views on the means of arriving at a single asylum procedure and a uniform standard of international protection by 2012. The discussions focused in particular on what priority the Council should give to negotiations on the recasting of the Dublin Regulation and on whether the ministers would back the inclusion of the temporary suspension clause.
81.  The Court of Justice of the European Communities (CJEC), which subsequently became the Court of Justice of the European Union (CJEU) upon the entry into force of the Treaty of Lisbon, has delivered one judgment concerning the Dublin Regulation. In the Petrosian case (C-19/08, judgment of 29 January 2009) the CJEC was asked to clarify the interpretation of Article 20 §§ 1 and 2 of the Dublin Regulation concerning the taking of responsibility for an asylum application and the calculation of the deadline for making the transfer where the legislation of the requesting member State provided for appeals to have suspensive effect. The CJEC found that time started to run following the decision on the merits of the request.
82.  The CJEU has recently received a request from the Court of Appeal (United Kingdom) for a preliminary ruling on the interpretation to be given to the sovereignty clause in the Dublin Regulation (N.S. and Others, case C‑411/10).
(b)  The European Union’s directives on asylum matters
83.  Three other European texts supplement the Dublin Regulation.
84.  Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers in the member States (“the Reception Directive”), came into force on 6 February 2003, the day of its publication in the Official Journal of the European Union (OJ 2003 L 31 p. 18). It requires the member States to guarantee asylum-seekers:
–  certain material reception conditions, including housing, food and clothing, in kind or in the form of financial allowances; the allowances must be sufficient to protect the asylum-seeker from extreme need;
–  arrangements to maintain family unity;
–  medical and psychological care; and
–  access for minors to the education system, and to language classes where necessary for them to undergo normal schooling.
In 2007 the European Commission asked the CJEC (now the CJEU) to examine whether Greece was fulfilling its obligations concerning the reception of refugees. In a judgment of 19 April 2007 (Case C-72/06 Commission v. Greece), the CJEC found that Greece had failed to fulfil its obligations under the Reception Directive. The Greek authorities subsequently transposed the Reception Directive.
On 3 November 2009 the European Commission sent a letter to Greece announcing that it was bringing new proceedings against it.
85.  Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member States for granting and withdrawing refugee status (“the Procedures Directive”), which came into force on 13 December 2005, the day of its publication in the Official Journal (OJ 2005 L 326 p. 13), guarantees the rights listed below.
–  An application for asylum cannot be rejected on the sole ground that it has not been made as soon as possible. In addition, applications shall be examined individually, objectively and impartially.
–  Asylum applicants have the right to remain in the member State pending the outcome of the examination of their application.
–  The member States are required to ensure that decisions concerning applications for asylum are given in writing and that, where an application is rejected, the reasons are stated in the decision and information on how to challenge a negative decision is given in writing.
–  Asylum-seekers shall be informed of the procedure to be followed, of their rights and obligations, and of the result of the decision taken by the determining authority.
–  Asylum-seekers shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary.
–  Asylum-seekers shall not be denied the opportunity to communicate with the UNHCR. More generally, the member States shall allow the UNHCR to have access to asylum applicants, including those in detention, as well as to information on asylum applications and procedures, and to present its views to any competent authorities.
–  Applicants for asylum shall have the opportunity, at their own cost, to consult in an effective manner a legal adviser. In the event of a negative decision by a determining authority, member States shall ensure that free legal assistance is granted on request. This right may be subject to restrictions (choice of counsel restricted to legal advisers specifically designated by national law, appeals limited to those likely to succeed, or free legal aid limited to applicants who lack sufficient resources).
The European Commission initiated proceedings against Greece in February 2006 for failure to honour its obligations, because of the procedural deficiencies in the Greek asylum system, and brought the case before the CJEC (now the CJEU). Following the transposition of the Procedures Directive into Greek law in July 2008, the case was struck out of the list.
On 24 June 2010 the European Commission brought proceedings against Belgium before the CJEU on the ground that the Belgian authorities had not fully transposed the Procedures Directive – in particular, the minimum obligations concerning the holding of personal interviews.
In its proposal for recasting the Procedures Directive, presented on 21 October 2009 (COM(2009) 554 final), the European Commission considered strengthening the obligation to provide information to the applicant. It also provided for a full and ex nunc review of first-instance decisions by a court or tribunal and specified that the notion of effective remedy required a review both of facts and of points of law. It further introduced provisions to give appeals automatic suspensive effect. The proposed amendments were intended to improve consistency with the evolving case-law regarding such principles as the right to defence, equality of arms, and the right to effective judicial protection.
86.  Council Directive 2004/83/EC of 29 April 2004 concerns minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”). It entered into force twenty days after its publication in the Official Journal (OJ 2004 L 304 p. 12).
This Directive contains a set of criteria for granting refugee or subsidiary protection status and laying down the rights attached to each status. It introduces a harmonised system of temporary protection for persons not covered by the Geneva Convention but who nevertheless need international protection, such as victims of widespread violence or civil war.
The CJEC (now the CJEU) has delivered two judgments concerning the Qualification Directive: the Elgafaji judgment of 17 February 2009 (C‑465/07), and the Salahadin Abdulla and Others judgment of 2 March 2010 (Joined Cases C‑175/08, C‑176/08, C‑178/08 and C‑179/08).
87.  In addition to the reports published following his visits to Greece (see paragraph 160 below), the Council of Europe Commissioner for Human Rights issued a Recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19), dated 19 September 2001, which states, inter alia:
“1.  Everyone has the right, on arrival at the border of a member State, to be treated with respect for his or her human dignity rather than automatically considered to be a criminal or guilty of fraud. 2.  On arrival, everyone whose right of entry is disputed must be given a hearing, where necessary with the help of an interpreter whose fees must be met by the country of arrival, in order to be able, where appropriate, to lodge a request for asylum. This must entail the right to open a file after having been duly informed, in a language which he or she understands, about the procedure to be followed. The practice of refoulement ‘at the arrival gate’ thus becomes unacceptable. 3.  As a rule there should be no restrictions on freedom of movement. Wherever possible, detention must be replaced by other supervisory measures, such as the provision of guarantees or surety or other similar measures. Should detention remain the only way of guaranteeing an alien’s physical presence, it must not take place, systematically, at a police station or in a prison, unless there is no practical alternative, and in such case must last no longer than is strictly necessary for organising a transfer to a specialised centre.
... 11.  It is essential that the right of judicial remedy within the meaning of Article 13 of the [Convention] be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the [Convention]. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the [Convention] is alleged.”